EXHIBIT 10.21
AIRCRAFT DRY LEASE
This Lease of aircraft is made, effective as of November 13, 2000, by and
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between Wyoming Associates, Inc., a corporation incorporated under the laws of
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the State of South Carolina, with principal offices at 000 Xxxx Xxxx Xxxxxx,
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Xxxxxxxxxxx, XX 00000 (hereinafter referred to as "Lessor") and ESA Services,
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Inc., a corporation incorporated under the laws of the State of Delaware, with
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principal offices at 000 Xxxx Xxx Xxxx Xxxx, Xx. Xxxxxxxxxx, XX 00000
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(hereinafter referred to as "Lessee").
RECITALS
The parties recite that:
A. Lessor owns a 1985 Canadair Challenger Model CL-600-2A-12 aircraft,
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Serial No. 3042, and currently registered as N333GJ (hereinafter referred to as
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the "Aircraft"). The Aircraft is available for use by a qualified Lessee; and
B. Lessee desires to lease the Aircraft under such terms and conditions as
are mutually satisfactory to the parties.
The parties agree as follows:
SECTION ONE
LEASE OF AIRCRAFT
For One Hundred Forty-Seven Thousand Dollars and No/100 ($147,000.00)
monthly and an engine reserve fee, if any, as agreed upon by both parties, from
time to time, Lessor agrees to
lease the Aircraft to Lessee. The Aircraft shall be delivered to Lessee at Ft.
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Lauderdale Hollywood International Airport in Ft. Lauderdale, Florida on
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November 13, 2000, at which time Lessee shall inspect the Aircraft to the extent
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deemed necessary. Lessee shall have ten (10) flight hours following delivery of
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the Aircraft in which to notify Lessor in writing of any defects in the Aircraft
or its equipment or accessories. If, at the end of such period, Lessor has not
received such notification, it shall be conclusively presumed between the
parties that Lessee has fully inspected the Aircraft having knowledge that it is
in good condition and repair and that Lessee is satisfied with and has accepted
the Aircraft in such condition and repair.
SECTION TWO
TERM
This Lease shall commence on November 13, 2000 and continue for one year
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after said date. Thereafter, this Lease shall be automatically renewed on a
month to month basis, unless sooner terminated by either party as hereinafter
provided. Either party may at any time terminate this Lease upon thirty (30)
days written notice to the other party, delivered personally or by certified
mail, return receipt requested, at the address for said other party as set forth
above.
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SECTION THREE
COMMERCIAL OPERATION RESTRICTION
Neither Lessee nor Lessor will make the Aircraft available for hire within
the meaning of the Federal Aviation Regulations. The Aircraft is to be operated
strictly in accordance with 14 C.F.R. Part 91.
SECTION FOUR
INSURANCE
At all times during the term of this Lease, Lessee shall cause to be
carried and maintained, at Lessee's cost and expense, physical damage insurance
with respect to the Aircraft in the amount set forth below:
Aircraft Physical Damage $12,900,000.00
(No Deductible While
In Motion or Not In Motion)
At all times during the term of this Lease, Lessee shall also cause to be
carried and maintained, at Lessee's cost and expense, third party aircraft
liability insurance, passenger legal liability insurance, property damage
liability insurance, and medical expense insurance in the amounts set forth
below:
Combined Liability Coverage for
Bodily Injury and Property Damage
Including Passengers -
Each Occurrence $100,000,000.00
Medical Expense Coverage -
Each Person $ 5,000.00
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Lessee shall also bear the cost of paying any deductible amount on any
policy of insurance in the event of a claim or loss.
Any policies of insurance carried in accordance with this Lease: (i) shall
name Lessor and its assignee as an additional insured; and (ii) shall contain a
waiver by the underwriter thereof of any right of subrogation against Lessor.
Each liability policy shall be primary without right of contribution from any
other insurance which is carried by Lessee or Lessor and shall expressly provide
that all of the provisions thereof, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering each
insured.
Lessee shall submit this Lease for approval to the insurance carrier for
each policy of insurance on the Aircraft. Lessee shall arrange for a
Certificate of Insurance evidencing appropriate coverage as to the Aircraft and
the satisfaction of the requirements set forth above to be given by its
insurance carriers to Lessor.
SECTION FIVE
RESTRICTIONS ON USE
Lessee may operate the Aircraft only for the purposes and within the
geographical limits set forth in the insurance policy or policies obtained in
compliance with Section Four of this Lease. The Aircraft shall be operated at
all times in
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accordance with the flight manual and all manufacturer's suggested operating
procedures. Furthermore, Lessee shall not use the Aircraft in violation of any
foreign, federal, state, territorial, or municipal law or regulation and shall
be solely responsible for any fines, penalties, or forfeitures occasioned by any
violation by Lessee. If such fines or penalties are imposed on Lessor and paid
by Lessor, Lessee shall reimburse Lessor for the amount thereof within thirty
(30) days of receipt by Lessee of written demand from Lessor. Lessee will not
base the Aircraft, or permit it to be based, outside the limits of the United
States of America, without the written consent of Lessor and its assignee.
The Aircraft shall be flown only by certificated and qualified pilots and
shall be maintained only by certificated and qualified mechanics. In the event
the insurance on the Aircraft would be invalidated because Lessee is unable to
obtain certificated and qualified pilots and mechanics, Lessee shall not operate
the Aircraft until such time as certificated and qualified pilots and mechanics
are obtained and insurance on the Aircraft is made valid.
Lessee will not directly or indirectly create, incur, assume or suffer to
exist any lien on or with respect to the Aircraft. Lessee will promptly, at its
own expense, take such
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action as may be necessary to discharge any lien not excepted above if the same
shall arise at any time.
SECTION SIX
INSPECTION BY LESSOR
Lessee agrees to permit Lessor or any authorized agent to inspect the
Aircraft at any reasonable time and to furnish any information in respect to the
Aircraft and its use that Lessor may reasonably request.
SECTION SEVEN
ALTERATIONS
Except in accordance with other written agreements entered into subsequent
to the date of this Lease between Lessee and Lessor regarding maintenance of the
Aircraft, Lessee shall not have the right to alter, modify, or make additions or
improvements to the Aircraft without the written permission of Lessor. All such
alterations, modifications, additions, and improvements as are so made shall
become the property of Lessor and shall be subject to all of the terms of this
Lease.
SECTION EIGHT
MAINTENANCE AND REPAIR
Lessee, at Lessee's own cost and expense, shall repair and maintain the
Aircraft during the term of this Lease so as to keep it in as good and safe
operating condition as when delivered by Lessor to Lessee, ordinary wear and
tear from use and ordinary deterioration excepted. Lessee shall pay all costs
and expenses of new parts and accessories for replacement,
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including transportation charges thereon. Lessee shall be entitled to any and
all salvage from broken or worn out parts. The workmen who inspect, maintain,
and repair the Aircraft on Lessee's behalf shall not be employees of Lessor, but
shall at all times be employees of Lessee or independent contractors, and Lessor
shall have no control or authority to direct, employ, discharge or pay
compensation to such employees. Subject to the foregoing limitations, Lessee
agrees to indemnify Lessor against any liability arising from the negligent
repair and maintenance of the Aircraft, as well as from failure to repair and
maintain the Aircraft, and also against any claim or liability arising out of
the repair work, and the delivery of material to and from the place where such
repair and maintenance work is performed.
All inspections, repairs, modifications, maintenance, and overhaul work to
be accomplished by Lessee shall be performed by personnel certificated to
perform such work and shall be performed in accordance with the standards set by
the Federal Aviation Regulations. Lessee shall maintain all log books and
records pertaining to the Aircraft during the term of this Lease in accordance
with the Federal Aviation Regulations. Such records shall be made available for
examination by Lessor, and Lessee, at the termination of this Lease, shall
deliver such records to Lessor.
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SECTION NINE
TITLE
The registration of and title to the Aircraft shall be in the name of the
Lessor, and the Aircraft, at all times during the term of this Lease or any
extension, shall bear United States registration markings. All responsibility
and obligations in regard to the operation of the Aircraft as above owned,
registered, and marked shall be borne by Lessee during the term of this Lease.
SECTION TEN
PAYMENT OF TAXES
Lessee shall pay or cause to be paid all taxes incurred by reason of
ownership of the Aircraft during the term of this Lease, including personal
property taxes. Lessee shall pay all taxes associated with Lessee's use of the
Aircraft on Lessee's own business, including landing fees, fuel taxes, and any
other taxes or fees which may be assessed against a specific flight by Lessee.
SECTION ELEVEN
ASSIGNMENT
Lessee shall not assign this Lease or any interest in the Aircraft, or
sublet the Aircraft, without prior written consent of Lessor. Subject to the
foregoing, this Lease inures to the benefit of, and is binding on, the heirs,
legal representatives, successors, and assigns of the parties.
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SECTION TWELVE
ACCIDENT AND CLAIM
Lessee shall immediately notify Lessor of each accident involving the
Aircraft, which notification shall specify the time, place, and nature of the
accident or damage, the names and addresses of parties involved, persons
injured, witnesses, and owners of properties damaged, and such other information
as may be known. Lessee shall advise Lessor of all correspondence, papers,
notices, and documents whatsoever received by Lessee in connection with any
claim or demand involving or relating to the Aircraft or its operation, and
shall aid in any investigation instituted by Lessor and in the recovery of
damages from third persons liable therefor.
SECTION THIRTEEN
RETURN OF AIRCRAFT TO LESSOR
On the termination of this Lease by expiration or otherwise, Lessee shall
return the Aircraft to Lessor at Spartanburg Downtown Airport in Spartanburg,
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South Carolina, in as good operating condition and appearance as when received,
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ordinary wear, tear and deterioration excepted, and shall indemnify Lessor
against any claim for loss or damage occurring prior to the actual physical
delivery of the Aircraft to Lessor.
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SECTION FOURTEEN
MODIFICATION OF AGREEMENT
This Lease constitutes the entire understanding between the parties, and
any change or modification must be in writing and signed by both parties.
SECTION FIFTEEN
GOVERNING LAW
This Lease is entered into under, and is to be construed in accordance
with, the laws of the State of South Carolina.
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SECTION SIXTEEN
TRUTH IN LEASING STATEMENT
THE AIRCRAFT, A 1985 CANADAIR CHALLENGER, MODEL CL-600-2A12, MANUFACTURER'S
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SERIAL NO. 3042, CURRENTLY REGISTERED WITH THE FEDERAL AVIATION ADMINISTRATION
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AS N333GJ, HAS BEEN MAINTAINED AND INSPECTED UNDER FAR PART 91 DURING THE 12
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MONTH PERIOD PRECEDING THE DATE OF THIS LEASE.
THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER FAR PART 91 FOR
OPERATIONS TO BE CONDUCTED UNDER THIS LEASE. DURING THE DURATION OF THIS LEASE,
ESA SERVICES, INC., 000 XXXX XXX XXXX XXXXXXXXX, XX. XXXXXXXXXX, XXXXXXX 00000,
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IS CONSIDERED RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT UNDER THIS
LEASE.
AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT
FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT
STANDARDS DISTRICT OFFICE.
THE "INSTRUCTIONS FOR COMPLIANCE WITH TRUTH IN LEASING REQUIREMENTS"
ATTACHED HERETO ARE INCORPORATED HEREIN BY REFERENCE.
I, THE UNDERSIGNED XXXXXX X. XXXXXXX, XX. AS PRESIDENT OF ESA SERVICES,
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INC., 000 XXXX XXX XXXX XXXXXXXXX, XX. XXXXXXXXXX, XXXXXXX 00000, CERTIFY THAT
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IT IS RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT AND THAT I UNDERSTAND
THE RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION
REGULATIONS.
IN WITNESS WHEREOF, the parties have executed this Lease.
WYOMING ASSOCIATES, INC.
/s/ Xxx X. Xxxxxxx, Xx. 11-13-00 4:30 p.m.
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XXX X. XXXXXXX, XX. Date and Time of Execution
Vice President
ESA SERVICES, INC.
/s/ Xxxxxx X. Xxxxxxx, Xx. 11/13/00 3:15 p.m.
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XXXXXX X. XXXXXXX, XX. Date and Time of Execution
President
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INSTRUCTIONS FOR COMPLIANCE WITH "TRUTH IN LEASING"
REQUIREMENTS
1. Mail a copy of the lease agreement to the following address via
certified mail, return receipt requested, immediately upon execution
of the agreement (14 C.F.R. requires that the copy be sent within
twenty-four hours after it is signed):
Federal Aviation Administration
Aircraft Registration Branch
ATTN: Technical Section
X.X. Xxx 00000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
2. Telephone the nearest Flight Standards District Office at least forty-
eight hours prior to the first flight under this lease agreement.
3. Carry a copy of the lease agreement in the aircraft at all times.
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